This was a scire facias issued by the plaintiff to subject (496) the defendant as the bail of one J. J. McElrath, and was submitted to the court upon the following case agreed: The plaintiff sued out a writ of trespass on the case in assumpsit against the present defendant and J. J. McElrath, which was delivered to the Sheriff of Burke County, who executed it on both the defendants therein and took from them a bond payable to himself for the sum of $800, with the condition "that if the above bounden J. J. McElrath and A. H. Erwin do make their personal appearance before the Judge of the Superior Court of Law to be held for the county of Burke at the courthouse in Morganton on the seventh Monday after the fourth Monday in March next, then and there to answer William W. Bradhurst of a plea of trespass on the case to the plaintiff's damage $400, and there to abide by the judgment of said court, and not depart the same without leave first had, and if the securities shall well and truly discharge themselves as special bail of said McElrath and Erwin, then this obligation to be void; else to remain in full force and virtue." This bond was assigned by the sheriff to the plaintiff in the usual manner. The writ was returned to the Spring Term, 1840, of the Superior Court, at which the *Page 362 defendants appeared by their attorneys and entered their pleas to the action. Afterwards, at the Fall Term, 1845, of said court, a judgment of nonsuit was given against the plaintiff, which, on his motion, was set aside as to McElrath, but not as to the present defendant, Erwin, and at a subsequent term, to wit, Spring Term, 1846, of said court, the plaintiff obtained judgment against the said McElrath for the sum of $413.32, of which sum $296.46 was principal, to bear interest from 21 April, 1846. Upon this judgment a ca. sa. was issued against the defendant therein, and returned "Not to be found"; whereupon the present sci. fa. was sued out upon the above-mentioned bond, to subject the present defendant, Erwin, to the payment (497) of the said judgment against the said McElrath as his special bail. Upon the return of the sci. fa. the defendant appeared by his attorney and pleaded "nul tiel record" and"non est factum". If the court be of opinion that the plaintiff is entitled to a judgment on his sci. fa. against the defendant, Erwin, then a judgment for the sum of $413.32, with interest on $296.46 from 26 April, 1846, until paid, is to be entered for him; but if the court be of opinion that the defendant, Erwin, cannot be subjected as bail for the said McElrath, then a judgment of nonsuit is to be entered. The judge presiding in the court below was of opinion that the defendant, Erwin, could not be subjected as bail for McElrath, and gave a judgment of nonsuit, from which the plaintiff appealed. We concur in the opinion given upon the case agreed by the presiding judge in the court below. The plaintiff's counsel has contended that, as the writ in the original suit was against both McElrath and Erwin, and they, upon being arrested, gave a joint bond to the sheriff for their appearance to answer the action, they thereby became mutually bound as special bail for each other, and that consequently Erwin can be subjected in this manner as the bail of McElrath. But that cannot be so, because the obligation of Erwin as a principal is very different from what would be his obligation as special bail for the appearance of his codefendant McElrath. As principal, he was bound to appear, answer the action and stand to and abide the judgment of the court. From that he was discharged by the judgment of nonsuit against the plaintiff as to him. As special bail, he ought to have had the right secured to him by the bond of discharging himself as such by the *Page 363 surrender of his principal or otherwise according to law. (498) But such are not the terms of the bond, either express or by any fair implication; and, that being so, he cannot, according to the decision upon this point in the case of Clarke v. Walker, 25 N.C. 181, be subjected by the plaintiff as the special bail of McElrath.
We decline giving any opinion upon the question whether the sheriff himself can have any remedy upon the bond, if he should be subjected as special bail for McElrath in consequence of his having failed to take special bail upon making the arrest in the original suit.
PER CURIAM. Judgment affirmed.
Cited: Hamlin v. McNiel, 32 N.C. 306.